The ICC in the Context of Libya: Principle of Complementarity, Al-Senussi and Deterrence

One of the interesting side events that took place today, on day three of the ASP, included a panel discussion around the importance of the International Criminal Court’s (ICC) role in the pursuit of deterrence. Additionally, the concept of complementarity, specifically pertaining to the case of Abdullah Al-Senussi and the context of Libya, was of focus. Of the four panelist participants, each offered a very unique perspective and contributed a multitude of viewpoints, which provided for a very enriched and wholesome conversation. Some points, however, were at odds with one another. Therefore, the purpose of this blog is to elaborate on each of the panelist’s contributions to the areas of complementary, the role of the ICC as a tool for deterrence and the Al-Senussi case, in the order in which they were presented.

The Deputy Prosecutor of the ICC, James Stewart, first spoke about the Court’s challenge in the Libyan situation. He recognized that, from the beginning, the Court lacked the very resources it needed. Given this, the ICC quickly realized that it had to take immediate action to develop a closer relationship with Libyan prosecution authorities and, further, to grow its partnership with external actors, such as Italy, the United Kingdom and the Mediterranean Naval Force. In response to this, the Office of the Prosecutor of the ICC produced a Strategic Plan. Mr. Stewart particularly highlighted the relevance of Strategic Goal 9 in the document, whereby states have an interest to assist the workings of the Court for the reason that, in turn, they are able to retrieve information from the ICC about particular cases. Likewise, the ICC has a positive interest to work closely with these partners to develop a coordinated investigative and prosecutorial strategy to close the impunity gap. In a very general sense, Mr. Stewart made sure to stress the reality of the Court. Due to time constraints and the fact that the ICC cannot deal with a high volume of cases, when it comes to the principle of complementarity, the Court must immediately look to see whether there are general proceedings being undertaken at the domestic or local level. If this indeed happens to be the case, then the work of the ICC must stop there.

Second to speak on the panel was Jennifer Trahan, Associate Clinical Professor at New York University. Ms. Trahan narrowed her discussion by emphasizing her concerns with the principle of complementarity in the Rome Statute, particularly by way of utilizing the case of Al-Senussi. The case of Al-Senussi was ruled inadmissible under the jurisdiction of ICC, given that Libyan authorities had undertaken investigations within their own national capabilities. However, Ms. Trahan noted her reservations about domestic capacities to implement robust complementarity. In the context of Libya, Ms. Trahan declared that the Al-Senussi ruling was particularly troubling given that Libya is a country that retains the death penalty, and so inadmissibility is more concerning in this type of circumstance. She further made mention of the fact that national proceedings (as in the example of Libya’s response to the Al-Senussi case) would have to be completely lacking in fairness – wherein which they would provide no justice – before they could be considered admissible under the arm of the ICC. Finally, her conclusions hinted at the fact that the domestic Al-Senussi trial was so flawed that, in theory, the Office of the Prosecutor could re-open the case in the future.

The third panelist, Fleur Ravensbergen, Assistant Director Dialogue Advisory Group, spoke about her work in directly communicating with perpetrators, bringing forward a very unique angle to the panel, but also a very controversial one. Ms. Ravensbergen began her presentation by alluding to the two overarching goals of the Dialogue Advisory Group, the first being to separate the sin from the sinner and the second relating to distinguishing between methods and goals. On the former point, Ms. Ravensbergen clarified that the goal is to speak with people on the extreme side of armed groups and, while indeed recognizing that their actions were unacceptable, to adopt a more positivist approach in accepting that these armed groups can change their behaviours. On the latter point, Ms. Ravensbergen highlighted that if we, as a society, want to move away from violence, we need to talk to the very people who are creating violence. By doing so, we are then better able to inform perpetrators that, though they may hold extreme ideas, they do not need to channel them through violence. Finally, Ms. Ravensbergen revealed her fairly positive outlook of the ICC by noting that perpetrators are paying attention to the ICC and its work, as they do not wish to appear on the ICC’s docket. This fact can influence the behaviour of perpetrators.

Last, the audience heard from Elham Saudi, Director for Lawyers for Justice in Libya. In her passionate talk, Ms. Saudi pressed the Deputy Prosecutor of the ICC to do more in the situation in Libya. She recommended that the ICC take on a greater role in the area of outreach to repair and restore the relationship between the Court and the people on the ground in Libya. Ms. Saudi’s main point was that, while the Court was highly regarded in Libya in 2011 (when the first three arrest warrants were issued by the Court), the ICC has since lost its appeal to Libyans. Consequently, on the ground, civil society has felt as if they were “used” by the ICC in the initial stages of the Court’s intervention.

In conclusion, this panel has alluded to some of the persisting challenges that remain in the case of Libya and the workings of the ICC, shed light on some of the potential areas for future improvement (such as the application of the principle of complementarity) and, finally, emphasized the need for continued conversations and dialogue with external civil society actors and organizations on the discussed areas.

This blog post and Nicole Tuczynski’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.